Introduction

Consider four different potential plaintiffs. Plaintiff A is a city resident. Believing—incorrectly—that he has a prior arrest record for larceny, federal officials place his name on a list of suspected criminals circulated to local businesses.1 Plaintiff B is a city employee. Disliking B, B’s supervisor denigrates him publicly and transfers him to an undesirable position.2 Plaintiff C is also a city employee. After her coworkers publicly accuse her of putting a voodoo curse on one of them, the city manager fires her.3 Plaintiff D is a landlord of a beachfront property. The local government places a placard on the property announcing that weekend renters violated noise ordinances.4 D can’t find new renters.

As a result of these experiences, each prospective plaintiff’s reputation may have been ruined. For redress, some could rely on state tort remedies for defamation.5 By necessity—or strategy—others might prefer to vindicate their rights in federal court. To do so, they could bring a procedural due process challenge alleging that the government6 provided insufficient procedural protections before depriving them of a liberty or property interest7—if they could prove that reputation was such an interest.8

In Paul v Davis,9 the Supreme Court held that reputation alone does not qualify as a liberty interest sufficient to support a procedural due process challenge.10 But the federal courts have paved a narrow path forward for claims predicated on reputational injuries. Complainants may bring a “stigma-plus” claim by pointing to both a state actor’s defamatory statement (the “stigma”) and an accompanying loss of a liberty or property interest (the “plus”), such as state employment.11

This formulation is puzzling. It is not unusual for courts to react skeptically to attempts to raise novel claims in federal court. But the hurdle the stigma-plus claim erects between injury and relief—requiring prospective plaintiffs to allege a specific additional harm—is out of the ordinary. This design choice generates novel challenges for courts seeking to determine whether the hurdle has been overcome.

This Comment draws on the design and purpose of the stigma-plus claim to investigate one of these challenges: whether plaintiffs must allege that the same actor was responsible for both the stigma and plus elements in a stigma-plus claim. Another way of asking this question is to consider which of the prospective plaintiffs introduced above has a viable claim and which does not. The holding in Davis renders the complaint of Plaintiff A, the pure-stigma plaintiff, dead on arrival in federal court. Plaintiff B is the archetypal stigma-plus complainant: both stigma and plus are easily attributed to a single actor. Plaintiffs C, the different-actor plaintiff, and D, the private-actor plaintiff, are less easily resolved.

Federal circuit courts have arrived at different answers to this question, and determining where to draw the line of cognizability yields important insights about the stigma-plus claim. The First Circuit requires the same state actor to supply both elements.12 As a result, in the First Circuit, only Plaintiff B could plead a viable stigma-plus claim. By contrast, the Second Circuit allows the two elements to derive from different sources.13 As a result, both Plaintiffs B and C could plead a viable stigma-plus claim. The circuit is less clear on which actor should face liability and whether both must be state actors. It appears to conclude that the source that provided the plus may be held liable.14 It also appears to require the plus itself to be supplied by a state actor.15 Without addressing this question directly, some circuits take this logic a step further, implying that even Plaintiff D could plead a stigma-plus claim under the right circumstances.16

Existing scholarship has not addressed the split between these two circuits.17 It focuses instead on criticizing the peculiarity or novelty of the stigma-plus claim.18 As a result, existing scholarship has done little to articulate the logic of the stigma-plus claim or to supply tools for examining emerging questions like the multiple-actor problem.

This Comment fills this gap by investigating the claim in depth and advancing a framework for answering the multiple-actor problem. Part I explores the background of procedural due process, federal constitutional torts, and stigma-plus claims generally. Part II describes the circuits’ competing approaches to the source-of-harm question. Part III answers the question presented by the courts’ divergence in two Sections. First, Part III.A derives the purpose of the stigma-plus claim by drawing analogies between the stigma-plus claim and plus enhancements attached to other civil rights claims. It determines that the claim represents the courts’ inchoate sense that stigma and plus represent additional or heightened harm in combination. The hurdle the claim imposes on plaintiffs is best thought of as a causation test rather than pure disapproval of reputational injury. Part III.A ends by investigating causally complex stigma-plus claims. It finds the causation story consistent with these approaches. Second, Part III.B draws on these insights to evaluate which circuit’s approach to the multiple-actor problem best vindicates the stigma-plus claim’s purpose. While both circuits’ approaches appear designed to scrutinize proximate causation, both are underinclusive, raising formal barriers to a set of claims that logically seem cognizable as stigma plus. This shortcoming leads both approaches to underdeter, empowering not only violations of protected liberty interests, but also free riding by the second actor in a putative stigma-plus claim. Yet there are two reasons to be less concerned about the Second Circuit’s flavor of underdeterrence. First, the Second Circuit’s underdeterrence of private actors may be justified under the state-action requirement.19 Second, the Second Circuit’s contextual approach to stigma-plus claims may enable the court to reach a subset of these actions. With these issues resolved, the Second Circuit provides the best resolution of the question of which actors may supply the different elements of the stigma-plus claim.

6. Which government entities are accused of inflicting stigma plus may shape the type of claim litigants could bring. Plaintiffs may seek damages from state or city officials only through 42 USC § 1983 actions and from federal officials only through a parallel federal common-law claim. See Part I.C.

11. Id at 710–11. See also Sadallah v City of Utica, 383 F3d 34, 38 (2d Cir 2004) (describing requirements of the test in detail). For discussion of which liberty interests qualify under this formulation, see Part I.D.2.